Citation Nr: 1703917
Decision Date: 02/08/17 Archive Date: 02/23/17
DOCKET NO. 09-07 252 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
THE ISSUES
1. Entitlement to an initial compensable disability rating for skin cancer, to include basal cell and squamous cell carcinoma of the right side of the neck.
2. Entitlement to an initial compensable disability rating for scars of the head, face and neck associated with skin cancer.
3. Entitlement to an initial compensable disability rating for scars, left upper extremity, associated with skin cancer.
4. Entitlement to an initial compensable disability rating for scars, back (posterior trunk), associated with skin cancer.
5. Entitlement to service connection for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T.Y. Hawkins, Counsel
INTRODUCTION
The Veteran had honorable active duty service with the Air Force from March 1966 to January 1970.
These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which granted service connection for the aforementioned issues and assigned a noncompensable disability rating to each disability, effective March 30, 2007. In May 2013, the Veteran submitted a timely notice of disagreement with the assigned ratings.
In January 2015, the Board remanded the issues to the Agency of Original Jurisdiction (AOJ)/RO for further development, to include issuing a Statement of the Case (SOC) and advising the Veteran and his representative of the time limit in which to file a substantive appeal. Although the AOJ incorrectly issued a Supplemental Statement of the Case (SSOC) in March 2016 (instead of an SOC), accompanied by an April 2016 notification letter, the letter neither notified the Veteran of the need to file a substantive appeal in order to perfect his appeal with the Board, nor advised him of the actual time limit in which to do so. In June 2016, following the receipt of additional evidence, the AOJ issued a second SSOC, again without providing any notice concerning the need to file a substantive appeal. The Veteran responded by filing a second timely notice of disagreement five (5) days later, which the Board hereby construes as a substantive appeal. In light of the AOJ's multiple procedural errors, the Board finds that construing his notice of disagreement as untimely or something other than a substantive appeal would unduly prejudice the Veteran.
The United States Court of Appeals for Veterans Claims (Court) has held that the filing of a substantive appeal is not a jurisdictional requirement, that the filing of a timely substantive appeal may be waived, and that where the RO/AOJ takes actions to indicate that such filing has been waived (for instance, by certifying the appeal), the Board has jurisdiction to decide the appeal. Percy v. Shinseki, 23 Vet. App. 37 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557-58 (2003). Here, the Veteran's substantive appeal was received by the AOJ on June 5, 2016, less than 60 days from the issuance of the April 7, 2016 notification letter, which also makes it timely. The AOJ then recertified the issued to the Board. As such, the Board finds that the requirement of filing a timely substantive appeal is waived, and the Board has jurisdiction to adjudicate the matters on appeal.
FINDINGS OF FACT
1. Throughout the period on appeal, the Veteran's skin cancer, to include basal cell and squamous cell carcinoma of the right side of the neck, has been manifested by symptoms no greater than a superficial posterior neck scar without pain or any characteristic of disfigurement.
2. Throughout the period on appeal, the Veteran's scars of the head, face and neck associated with skin cancer have been manifested by symptoms no greater than a scar of the left lower lip, a scar of the left neck, a scar of the right temporal area, and a scar of the posterior neck, without pain or any characteristic of disfigurement.
3. Throughout the period on appeal, the Veteran's scars, left upper extremity, associated with skin cancer have been manifested by symptoms no greater than a
superficial dorsal hand scar and a superficial left lateral, extensor forearm scar, each covering an area less than 144 square inches (929 sq. cm), and without pain or limitation of motion or function.
4. Throughout the period on appeal, the Veteran's scars, back (posterior trunk), associated with skin cancer have been manifested by symptoms no greater than a right, mid lower back, superficial scar covering an area less than 144 square inches (929 sq. cm), without pain or limitation of motion or function.
5. In November 2015, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his appeal of entitlement to service connection for PTSD.
CONCLUSIONS OF LAW
1. The criteria for an initial compensable disability rating for skin cancer, to include basal cell and squamous cell carcinoma of the right side of the neck, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Codes 7833, 7801-7805 (2002); Diagnostic Codes 7801-7805 (2016).
2. The criteria for an initial compensable disability rating for scars of the head, face and neck associated with skin cancer have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Codes 7801-7805 (2002); Diagnostic Codes 7801-7805 (2016).
3. The criteria for an initial compensable disability rating for scars, left upper extremity, associated with skin cancer have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Codes 7801-7805 (2002); Diagnostic Codes 7801-7805 (2016).
4. The criteria for an initial compensable disability rating for scars, back (posterior trunk), associated with skin cancer have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.118, Diagnostic Codes 7801-7805 (2002); Diagnostic Codes 7801-7805 (2016).
5. The criteria for withdrawal of a substantive appeal by the Veteran concerning the issue of entitlement to service connection for PTSD have been met. 38 U.S.C.A.
§ 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Withdrawal of Appeals
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2016). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2016).
In November 2015, during a telephone call with a staff member at the Louisville RO, the Veteran said that he wished to withdraw the appeal of his claim of entitlement to service connection for PTSD. As such, the Veteran has withdrawn this issue and there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim and it is dismissed.
Initial disability evaluations
Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). Separate Diagnostic Codes (DC) identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016).
The veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2016). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994).
However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2009).
The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2016). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016).
In every instance in which the Schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.
The rating criteria for evaluating skin disabilities were amended during the course of this appeal, effective October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008) (presently codified at 38 C.F.R. § 4.118, DC 7800 -7833 (2016)). Nevertheless, the revised criteria only apply to claims filed on or after October 23, 2008, and to those claims where a request for consideration of the new criteria has been received. See 73 Fed. Reg. 54,708. However, nothing prohibits the application of a prior regulation to the period on or after the effective date of a new regulation. Thus, the rule that a veteran is entitled to the most favorable of the versions of a regulation that was revised during his or her appeal allows application of the prior versions of the applicable diagnostic codes at 38 C.F.R. § 4.118 to the period on or after the effective dates of the new regulations.
Prior to October 23, 2008, the rating schedule for evaluating scars read as follows:
DC 7800 provides that burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck: With visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, are rated as 80 percent disabling; with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, are rated as 50 percent disabling; with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, are rated as 30 percent disabling; and with one characteristic of disfigurement, are rated as 10 percent disabling. 38 C.F.R. § 4.118, DC 7800 (2008).
DC 7801 provides that scars, other than head, face, or neck, that are deep or that cause limited motion are rated as follows: area or areas exceeding 144 square inches (929 sq. cm) are rated as 40 percent disabling; area or areas exceeding 72 square inches (465 sq. cm) are rated as 30 percent disabling; area or areas exceeding 12 square inches (77 sq. cm) are rated as 20 percent disabling; and area or areas exceeding 6 square inches (39 sq. cm) are rated as 10 percent disabling. 38 C.F.R. § 4.118, DC 7801 (2008). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note 2.
DC 7802 provides that scars, other than head, face, or neck, that are superficial and that do not cause limited motion, covering an area or areas of 144 square inches (929 sq. cm) or greater, are rated as 10 percent disabling. 38 C.F.R.
§ 4.118, DC 7802 (2008). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note 2.
DC 7803 provides that a 10 percent rating is warranted for scars that are superficial and unstable. 38 C.F.R. § 4.118, DC 7803 (2008).
Note 1 to DC 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 to DC 7803 provides that a superficial scar is one not associated with underlying soft tissue damage.
DC 7804 provides that a 10 percent rating is warranted for scars that are superficial and painful on examination. 38 C.F.R. § 4.118, DC 7804 (2008). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7804, Note 1.
DC 7805 provides that other scars are rated based upon limitation of function of affected part.
The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: Scar 5 or more inches (13 or more cm.) in length; Scar at least one-quarter inch (0.6 cm.) wide at widest part; Surface contour of scar elevated or depressed on palpation; Scar adherent to underlying tissue; Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).
The Veteran's basal cell and squamous cell carcinoma of the right side of the neck has been rated under DC 7833, malignant melanoma. Malignant melanoma is rated as scars (DC's 7801, 7802, 7803, 7804, or 7805), disfigurement of the head, face, or neck (DC 7800), or impairment of function (under the appropriate body system).
Effective October 23, 2008, the rating criteria for evaluating skin disabilities were revised. See 73 Fed. Reg. 54,708 (September 23, 2008) (presently codified at 38 C.F.R. § 4.118, DC 7800 -7833 (2016)). The amendments apply to all applications for benefits received by VA on or after October 23, 2008, or, in the case of a veteran rated under DCs 7800-7805, if review is requested under the clarified criteria. Here, there is no evidence that the Veteran requested that his scar disabilities be evaluated under the revised scar codes. Moreover, as the new scar codes would not be more favorable to him, the rating in effect at the time he applied for benefits will be used.
The Veteran's skin cancer has been linked to his active duty service as a result of extensive and prolonged sun exposure. VA treatment reports of record show that he had multiple skin lesions removed in the 1990s. A November 2007 VA treatment record shows that he was seen with complaints of skin lesions on the back, top of head, forehead and posterior left arm. Several erythematous-based lesions were found, however, they were flesh-colored, all less than 3 centimeters in area, and there was no evidence of skin breakdown (instability) or pain,
In June 2012, during his initial VA skin examination, he reported that he had been diagnosed with basal cell carcinoma in 1983 and squamous cell carcinoma in 1990. He said that he did not have any systemic manifestations of either disease, and had not been treated with oral or topical medications or had any incapacitating or non-incapacitating episodes in the past 12 months. On physical examination, the clinician noted that he had undergone multiple surgical excisions of malignant neoplasms (with liquid nitrogen) beginning in the early 1980s and continuing through the 2000s. This treatment resulted in a pale, well-healed, asymptomatic scar on the left posteroinferior auricular area of the head measuring 4.0 by 0.5 centimeters, as well as multiple scars of the back and bilateral extensor forearms.
In April 2013, the Veteran was afforded an examination to evaluate his residual scars. Scars were found on the left hand, left neck, lip, right temporal area (head), back and left forearm. None of the scars were painful or unstable, none were deep, and none were the result of burns. There was a scar on the left dorsal of the hand that was pale, somewhat irregular, superficial and nonlinear that measured 3.0 by 2.5 centimeters. A scar on the left lateral extensor forearm was superficial and nonlinear and measured 2.5 by 1 centimeter. A scar of the posterior trunk on the right, mid-lower back was pale and irregular (non-linear) and measured 1.8 by 1.2 centimeters. The total area for non-linear scars on the left upper extremity was approximately 10 centimeter squared, and the total are of scars on the posterior trunk was 2 centimeters squared. There was a scar on the left side of the neck, pre-auricular area, that the examiner said was very difficult to visualize during the examination; it measured 4.0 by 0.5 centimeters. A scar on the left lower lip was irregular and hard to demarcate; it measured 0.6 by 0.3 centimeters. A scar on the right temporal area that was very difficult to delineate measured 1.0 by 0.3 centimeters. None of these scars demonstrated elevation, depression, adherence to underlying tissue or had missing underlying tissue, and none had abnormal pigmentation or texture. None of the scars resulted in limitation of motion or function or impacted on his ability to work.
In October 2015, the Veteran was seen at the VA dermatology clinic for a skin evaluation. He complained of multiple scaly spots on his face and arms. The examination revealed erythematous scaly macules on the scalp, face, right ear, left ear, right arm and left arm. There were a few scattered tan/brown reticulated macules on sun-exposed areas, and stuck-on greasy, flesh-colored or brown keratotic papules/macules with or without pseudo-horn cysts on the truck. The clinician explained that these were pre-cancerous legions and should be treated. The diagnoses were seborrheic keratosis and cherry angiomata. Significantly, while the clinician noted a history of basal cell carcinoma and squamous cell carcinoma, there was no evidence of recurrence.
In December 2015, the Veteran was afforded another VA skin examination. He reported that he was followed by the VA dermatology clinic every four months for monitoring and treatment of his skin, and said that he had had a noncancerous lesion on the left side of the nose removed in 2014. He said he was being treated with topical Fluorouracil 5 percent cream , used for actinic keratosis and cancerous lesions . However, he reported that the total duration of medication use in past 12 months was less than six months. The examiner noted that the Veteran had multiple scars status-post excision and was undergoing treatment for a benign or malignant neoplasm.
During the December 2015 VA scars examination, the clinician noted a scar on the left pre-auricular, which she said was very difficult to visualize. It measured 4.0 by 0.5 centimeters. A scar on the left lower lip was irregular and difficult to demarcate. It measured 0.6 by 0.3 centimeters. A scar on the right temporal was also very hard to delineate. It measured 1.0 by 0.3 centimeters. A scar on the posterior neck measured 3.0 by 0.2 centimeters. The examiner specifically added that the scars on the right scalp, lower lip, posterior neck and left neck were very
difficult to recognize due to skin irregularities. None of the scars were painful or unstable. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue, and no abnormal pigmentation.
Based on these findings, under the scar codes in effect prior to October 23, 2008, a compensable disability rating is not warranted for skin cancer, to include basal cell and squamous cell carcinoma of the right side of the neck; scars of the head, face and neck associated with skin cancer; scars of the left upper extremity, associated with skin cancer; or scars, back (posterior trunk), associated with skin cancer under any of the respective diagnostic codes 7800 - 7805 and 7833. As discussed, none of the scars of the head, face or neck had any characteristics of disfigurement, none of the scars resulted in limitation of motion or function, and none of the scars were painful or unstable. Additionally, a higher disability rating is not available using the scar codes in effect October 23, 2008.
Accordingly, the Veteran does not meet or nearly approximate the criteria for a compensable disability rating for his service-connected skin cancer of the right side of the neck, or any of his scars associated with skin cancer under any of the potentially applicable diagnostic codes during any portion of the appeal period. Staged ratings are not applicable. See Fenderson v. West, 12 Vet. App. 119 (1999).
The Board has considered whether other diagnostic codes are applicable to the Veteran's skin cancer with associated scars. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). However, there are no other relevant diagnostic codes that would apply to any of these disorders.
Extraschedular Considerations
In evaluating the Veteran's claims, the Board has also considered whether referral for consideration of an "extraschedular evaluation" is warranted for any of the disabilities on appeal, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation, commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities, will be made. 38 C.F.R. § 3.321(b)(1).
The lay and medical evidence of record fails to show unique or unusual symptomatology regarding the Veteran's service-connected skin cancer or scars. Thus, the application of the Rating Schedule is not rendered impractical. Moreover, the Veteran has not argued that his symptoms are not contemplated by the rating criteria; he has merely disagreed with the assigned disability ratings for his level of impairment. Moreover, he has not claimed, nor is there probative evidence showing that any of his disabilities has caused marked interference with employment or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Accordingly, referral for consideration of an extraschedular evaluation is not warranted.
Veterans Claims Assistance Act of 2000 (VCAA)
VA's duty to notify was satisfied by notice letters in June 2007 and May 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
ORDER
Entitlement to an initial compensable disability rating for skin cancer, to include basal cell and squamous cell carcinoma of the right side of the neck, is denied.
Entitlement to an initial compensable disability rating for scars of the head, face and neck associated with skin cancer is denied.
Entitlement to an initial compensable disability rating for scars, left upper extremity, associated with skin cancer is denied.
Entitlement to an initial compensable disability rating for scars, scars, back (posterior trunk), associated with skin cancer.
The claim of entitlement to PTSD is dismissed.
____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs